Appeal details
Counselvise Citation
[2016] 121 COUNSELVISE.COM (IT) 2420 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 2 month(s) 19 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
01-03-2016
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
SMC
Next Hearing Date
01-03-2016
Assessment Year
2012-2013
Appeal Filed On
12-12-2014
Judgement Text
, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA.NO.3348/AHD/2014 / ASSTT. YEAR: 2012-13 M/S.SHRADDHDA CO-OP. HSG. SOCIETY LTD. SUMU DIARY ROAD SURAT 395 008. PAN : AACAS 6466 R VS ACIT, CPC BANGALORE. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : NONE (WS) REVENUE BY : ANITA HARDASANI, SR.DR / DATE OF HEARING : 01/03/2016 / DATE OF PRONOUNCEMENT: 01/03/2016 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORDER O F THELD.CIT(A) DATED 1.10.2014 FOR THE ASSTT.YEAR 2012-13. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE READ AS UNDER: 1. THE ID.CIT(A) HAS ERRED IN LAW AND IN FACTS IN D ISMISSING THE APPEAL INSPITE OF IGNORING THE FACT THAT ON THE DAY OF FIR ST HEARING I.E. 24/04/2014 ADJOURNED TO MAY 2014,DULY RECORDED, THE ID.CIT (A) HAS NEVER RAISED ANY POINT OF DELAY AND OR DATE OF SERV ICE OF ORDER AND BLUNTLY FINALIZED THE APPEAL ON THAT DAY SUBSEQUENT LY AFTER THE LAPSE OF 4 MONTHS ISSUED A LETTER DATED 15/09/2014 BUT THE C HAIRMAN SHRI SURESH DESAI WAS OUT OF INDIA FROM 26/05/2014 TO 11 /11/2014 AND LETTER WAS REMAINED UNREPLY. ITA NO.3348/AHD/2014 2 2. THE ID.CIT(A) HAS ALSO ERRED IN LAW AND IN FACT IN PASSING ONE SIDED ORDER WITHOUT GIVING APPROPRIATE AND SUFFICIENT OPP ORTUNITY TO THE APPELLANT. 3. THE ID.CIT(A) HAS ALSO ERRED IN LAW AND IN FACT IN DISMISSING THE APPEAL INSPITE OF THE FACTS THAT THE APPELLANT IS A CO OP SOCIETY NOT TO HAVE OFFICE AND STAFF AND CONSIDERING THIS ASPECT A LSO TAKE LENIENT VIEW AND CONDON THE DELAY IF ANY OCCURRED IN SUCH A CASE . 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, EDIT, DELETE, MODIFY OR CHANGE ALL OR ANY OF THE GROUNDS OF APPEAL AT TH E TIME OF OR BEFORE THE HEARING. 2. IN RESPONSE TO THE NOTICE OF HEARING NONE HAS CO ME PRESENT ON BEHALF OF THE ASSESSEE. SHRI O.J. SAHERWALA, PARTNER IN SAHE ERWALA & CO., CHARTERED ACCOUNTANTS HAS FILED A PAPER BOOK AND WRITTEN SUBM ISSIONS. WITH THE ASSISTANCE OF THE LD.DR, WE HAVE GONE THROUGH THE W RITTEN SUBMISSIONS. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S CLAIMED DEDUCTION UNDER SECTION 80P(2) OF RS.1,42,865/-. THIS DEDUCTION WA S DISALLOWED TO THE ASSESSEE BY THE ACIT, CPC, BANGALORE WHILE PROCESSI NG THE RETURN OF THE ASSESSEE. AGGRIEVED WITH THE ORDER OF THE ACIT, CP C, BANGALORE, THE ASSESSEE HAS FILED APPEAL BEFORE THE LD.FIRST APPEL LATE AUTHORITY ON 11.12.2013. THE LD.CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT IT IS TIME BARRED AND THE ASSESSEE HAS NOT FILED ANY APPLICATION FOR CONDONATION OF DELAY. THE FINDING RECORDED BY THE CIT(A) READ AS UNDER: 6.1.11 HAVE CONSIDERED THE ASSESSMENT ORDER U/S 143 (1) OF THE ACT AND THE DETAILS AVAILABLE ON RECORD. THE FOLLOWING OBSE RVATIONS ARE RAISED DURING THE APPELLATE PROCEEDINGS. THE APPELLANT HAS NOT FILED HIS APPEAL APPLICATION WITHIN STIPULATED TIME AND NOT F ILED AN APPLICATION FOR CONDONATION OF DELAY. THE ASSESSMENT ORDER WAS PASSED ON 27.02.2013 U/S 143(1) OF THE IT ACT, 1961. THE APPE AL AS PER THE APPEAL MEMO WAS FILED ON 11/12/2013. IN THE APPEAL MEMO IT SELF, THE APPELLANT HAS MENTIONED THAT THE ASSESSMENT ORDER WAS RECEIVE D .ON 20.11.2013. SINCE THERE WAS A DELAY IN FILING OF THE APPEAL, A LETTER WAS SENT TO THE APPELLANT FOR PRODUCING THE PROOF THAT THE ASSESSME NT ORDER U/S 143(1) WAS RECEIVED ON 11.12.2013 I.E. AFTER MORE THAN 9 M ONTHS OF THE DATE OF ITA NO.3348/AHD/2014 3 THE ORDER. A SHOW CAUSE LETTER WHICH WAS ISSUED BY THIS OFFICE DATED 15.09.2014 IS BEING REPRODUCED IN REFERENCE TO YOUR APPEAL FILED FOR A.Y. 2012-13 IN THIS OFFICE ON 11.12.2013, THE RECORDS SHOW THAT THE ORDER U/S 143 (1) WAS PASSED BY CPC ON 27.02.2013. HOWEVER, IN YOUR APPEAL MEMO (FO RM NO. 35} YOW-HAVE, MENTIONED THE DATE OF SERVICE AS 20.11.2 013, AS PER THE PROVISIONS OF THE IT ACT YOUR APPEAL IS BARRED BY L IMITATION AS THE APPEAL IS BARRED BY LIMITATION AS THE APPEAL IS REQ UIRED TO BE FILED WITHIN 30 DAYS. YOU ARE REQUIRED TO FILE THE PROOF THAT ORDER WAS RECEIVED ON 20.11.2013 AS CLAIMED IN THE APPEAL MEM O, FAILING WHICH THE APPEAL WILL BE DECIDED ACCORDINGLY AS PER THE P ROVISIONS OF THE IT ACT. THE DATE OF COMPLIANCE IS 24.09.2014.' 6.1.2 IN RESPONSE TO THE AFORESAID LETTER DT 15.09. 2014, NO COMPLIANCE WAS MADE. THE APPELLANT HAS NOT MADE ANY SUBMISSION OR SUBMITTED ANY EVIDENCES IN SUPPORT OF HIS CLAIM REGARDING THE RECEIVING OF THE ORDER FROM CPC, BANGALORE ON 20.11.2013. IN ABSENCE OF ANY EXPLANATION OR EVIDENCE IT IS FOUND THAT THE APPEAL HAS BEEN FILED BEYOND THE LIMITATION PERIOD AS PER THE PROVISIONS U/S 249(2) OF THE ACT. THE VARIOUS COURTS HAVE ALSO HELD THAT IN CASE THE APPELLANT IS NOT ABLE TO SHOW THAT THERE EXISTED SUFFICIENT CAUSE FOR THE DELAY IN FILING OF APPEAL BEYOND THE LIMITATION PERIOD, THE APPEAL IS NOT MAINTAINABLE AND LIABLE TO BE REJECTED. THE FOLLOWING JUDGMENTS HAVE UPHELD THE ABOVE CONTENTION: > VINOD KUMAR(1982) 2 ITD 606 (DELHI) > A.N. MAFATLAI (HUF) [1982] 2 ITD 631 (BOM.) > SANDEEP NARANG AND VICE VERSA [1982] 1 ITD 36 ( PAT.) > CHARKI MICA MINING CO. LTDF.1978] 111 ITR 183 ( CAL.) > MUNICIPAL BOARD 1951] 19ITR 63 (ALL.) > K. PRABHAKAR RAO [2011] 128 ITD 263 (BANG.) 6.1.3 IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, THE APPEAL OF THE APPELLANT IS BARRED BY LIMITATION AND NOT MAINTAINA BLE AS PER THE PROVISIONS OF SECTION 249(2) RWS 249(3) OF IT ACT, 1961 AND IS BEING DISMISSED AS NON-MAINTAINABLE. 7. IN THE RESULT, THIS APPEAL IS DISMISSED AS NON-MAINTAINABLE. 4. IN THE WRITTEN SUBMISSIONS, THE ASSESSEE HAS PLE ADED THAT DURING THE COURSE OF HEARING, THE LD.CIT(A) HAS NOT CONFRONTED TO THE ASSESSEE WITH ITA NO.3348/AHD/2014 4 REGARD TO NON-MAINTAINABILITY OF THE APPEAL. THE C IT(A) HAS ISSUED A LETTER DATED 15.9.2014 POINTING OUT THAT THE APPEAL IS TIM E BARRED, BUT THE SECRETARY OF THE ASSESSEE-SOCIETY WAS OUT OF INDIA BETWEEN 27 .5.2014 TO 11.11.2014. THEREFORE, THIS LETTER REMAINED UNATTENDED. THE AS SESSEE FURTHER PLEADED THAT IT IS A COOPERATIVE SOCIETY WHO DOES NOT HAVE OFFIC E AND STAFF AND CONSIDERING THIS ASPECT A LENIENT VIEW OUGHT TO BE TAKEN BY THE CIT(A). ACCORDING TO THE ASSESSEE, THE APPEAL SHOULD HAVE BEEN DECIDED ON ME RIT INSTEAD OF CONSIDERING THE PROCEDURE. THE ASSESSEE PLACED ON RECORD COPY OF THE CIT(A)S ORDER IN THE ASSTT.YEAR 2013-14 AND 2014-15 WHEREIN AFTER EN TERTAINING THE APPEAL ON MERIT, THE LD.CIT(A) HAS ALLOWED THE DEDUCTION UNDE R SECTION 80P(2). COPY OF THESE ORDER DATED 29.10.2015 ARE PLACED ON THE PAPE R BOOK. 5. THE LD.DR TOOK US THROUGH SECTION 249(2) AND (3) OF THE INCOME TAX ACT. SHE SUBMITTED THAT THE APPEAL BEFORE THE CIT( A) OUGHT TO BE PRESENTED WITHIN 30 DAYS OF THE ORDER SERVED UPON THE ASSESSE E IMPUGNED IN THE APPEAL. THE ASSESSEE OUGHT TO HAVE MOVED AN APPLICATION UND ER SUB-SECTION (3) OF SECTION 249 FOR CONDONATION OF DELAY. AFTER CONDON ATION OF DELAY, THE CIT(A) COULD ENTERTAIN THE DISPUTE ON MERIT. 6. WE HAVE DULY CONSIDERED THE CONTENTIONS OF THE L D.DR AND GONE THROUGH THE RECORD CAREFULLY. ADMITTEDLY, THE APPE AL IS TIME BARRED BEFORE THE LD.CIT(A). NO APPLICATION WAS MOVED BY THE ASSESSE E FOR CONDONATION OF DELAY. THE REASONS FOR NON-FILING OF ANY APPLICA TION AT THE END OF THE ASSESSEE IS THAT THE SECRETARY OF THE SOCIETY WAS O UT OF INDIA FROM 27.5.2014 TO 11.11.2014. A LETTER WAS ISSUED BY THE LD.CIT(A) 1 5.9.2014. ON PERUSAL OF THE SUBMISSIONS MADE BY THE ASSESSEE BEFORE US, IT REVEALED THAT ON 27.8.2014, THE CIT(A) HAS HEARD THE APPEAL AND ACCEPTED THE OR AL SUBMISSIONS. THEREAFTER, THE CIT(A) HAS RE-FIXED THE APPEAL AND ISSUED A LETTER POINTING OUT THE FACT THAT THE APPEAL IS TIME BARRED. WE FAILED TO UNDERSTAND, IF HEARING ON ITA NO.3348/AHD/2014 5 27.8.2014 CAN BE ATTENDED WITHOUT PRESENCE OF THE S ECRETARY, THEN, WHAT PROHIBITED THE PRESIDENT OR OTHER OFFICIALS OR THE SOCIETY TO REPLY TO THE LETTER OF THE CIT(A) DATED 15.9.2014 OR FILE AN APPLICATION F OR CONDONATION OF DELAY. THE ASSESSEE SHOULD HAVE APPLIED FOR ADJOURNMENT, P OINTING OUT THE ABSENCE OF THE SECRETARY FOR SUBMISSION OF THE APPLICATION FOR CONDONATION OF DELAY. BUT IT HAS NOT TAKEN ANY SUCH STEPS. EVEN BEFORE U S, NO APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL BEFORE TH E CIT(A) HAVE BEEN MOVED. ON CONSIDERATION OF SECTION 249(2) AND (3), WE ARE OF THE VIEW THAT UNLESS AN APPEAL IS BEING INSTITUTED WITHIN TIME LIMIT PROVID ED IN THE ACT OR THE DELAY IN FILING THE APPEAL IS BEING CONDONED BY THE APPELLAT E AUTHORITY ON BEING SATISFIED THAT THE ASSESSEE WAS PREVENTED BY REASON ABLE CAUSE TO FILE AN APPEAL WITHIN TIME LIMIT, THE ISSUE ON MERIT CANNOT BE TOU CHED. THE APPELLATE AUTHORITY HAS TO CROSS THESE HURDLES FOR ENTERTAINI NG THE ISSUE ON MERIT. THE ASSESSEE HAS NOT FILED ANY APPLICATION FOR CONDONAT ION OF DELAY IN FILING THE APPEAL BEFORE THE CIT(A). THE ASSESSEE COULD PLEAD THAT APPEAL BEFORE ITAT IS CONTINUATION OF THE PROCEEDING AND AN APPLICATIO N TO SEEK PERMISSION TO FILE THE APPLICATION FOR CONDONATION OF DELAY COULD BE F ILED. APART FROM THIS, THE APPEAL WAS ADJOURNED ON THREE OCCASIONS, BUT, NOBOD Y HAS EVEN BOTHERED TO ATTEND THE HEARING SO THAT ANY PROCEDURAL LACUNAE CAN BE EXPLAINED TO THE ASSESSEE. CONSIDERING THESE ASPECTS, WE DO NOT FIN D ANY MERIT IN THE APPEAL OF THE ASSESSEE. IT IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE COURT ON 1 ST MARCH, 2016 AT AHMEDABAD. SD/- SD/- ( MANISH BORAD ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 01/03/2016
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